Before
the Court is Petitioner Marquis Craig's Amended Motion to
Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C.
§ 2255 (ECF No. 222). For the reasons briefly explained
herein, the Motion is GRANTED.

I.
FACTUAL BACKGROUND

Petitioner
Craig is currently serving a 246-month sentence as a result
of pleading guilty to four counts of a six-count indictment:
Hobbs Act robbery, 18 U.S.C. § 1951(a) (Count One); use
of a firearm in connection with a crime of violence (the
Hobbs Act robbery), 18 U.S.C. § 924(c)(1)(B)(i) (Count
Two); possession of a sawed-off shotgun, 26 U.S.C. §
5861(d) (Count Three); and being a felon in possession of a
firearm, 18 U.S.C. § 922(g)(1) (Count Six). With respect
to Count Six, Craig was found to be an armed career criminal
under the Armed Career Criminal Act (ACCA), 18 U.S.C. §
924(e), because he had at least three prior convictions for a
“violent felony.”[1] Specifically, the Presentence
Investigation Report (PSR) identified four separate
ACCA-qualifying convictions: (1) two Massachusetts
convictions for Assault and Battery on a Police Officer (PSR
¶¶ 25, 28); (2) one Massachusetts conviction for
Breaking and Entering at Nighttime with Intent to Commit a
Felony (PSR ¶ 26); and (3) one Massachusetts conviction
for Assault and Battery with a Dangerous Weapon (PSR ¶
27).[2]
(See PSR ¶ 20.) The PSR calculated that the guideline
sentencing range for imprisonment on Counts One, Three, and
Six, with an adjustment for acceptance of responsibility, was
188 to 235 months. (PSR ¶ 42.) Without the ACCA
enhancement on Count Six, the sentencing range for Counts
One, Three, and Six would have been 110 to 137 months. (See
PSR ¶¶ 19, 21, 31.) On December 12, 2001, the Court
sentenced Craig to 246 months imprisonment: 150 months (12.5
years) on Counts One and Six and 120 months (10 years) on
Count Three, all to run concurrently, plus a consecutive
sentence of 96 months (8 years) on Count Two pursuant to 18
U.S.C. § 924(c)(1)(B)(i).[3] (ECF No. 128.) Craig did not
appeal his conviction or his sentence.[4]

II.
PETITIONER'S ARGUMENTS

Craig
makes two major arguments in support of his motion. First, he
contends that, in light of the United States Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2251 (2015) (Johnson II), his sentence on
Count Six must be vacated because he no longer has the three
requisite convictions for an increased sentence under ACCA.
Specifically, he contends that he does not have three prior
“violent felony” convictions without recourse to
ACCA's “residual clause, ” which was struck
down as unconstitutionally vague in Johnson II.
Second, Craig contends that his consecutive sentence on Count
Two must be vacated because the Hobbs Act robbery charged in
Count One does not qualify as a predicate “crime of
violence” under 18 U.S.C. § 924(c)(3). The Court
first considers whether Craig has procedurally defaulted on
his claims and then analyzes each of his major claims in
turn.

III.
LEGAL ANALYSIS

A.
Procedural Default

The
Government has raised the issue of procedural default as an
affirmative defense to Craig's motion for relief. See
Oakes v. United States, 400 F.3d 92, 96-98 (1st Cir.
2005) (holding that procedural default must be raised by the
Government as an affirmative defense or raised sua sponte
with notice to the petitioner and an opportunity to respond).
It is well established that “[c]ollateral relief in a
§ 2255 proceeding is generally unavailable if the
petitioner has procedurally defaulted his claim by fail[ing]
to raise [the] claim in a timely manner at trial or on
[direct] appeal.” Bucci v. United States, 662
F.3d 18, 27 (1st Cir. 2011) (alteration in original)
(internal quotation marks omitted). Craig did not raise his
claims at the time of his sentencing and he did not
appeal.[5]Craig therefore procedurally defaulted on
the claims in his motion for sentencing relief.

However,
this procedural default may be excused if he “can show
both (1) ‘cause' for having procedurally defaulted
his claim; and (2) ‘actual prejudice' resulting
from the alleged error.” Bucci, 662 F.3d at
27.[6]
Because, as discussed below, Craig is entitled to relief, he
has shown “actual prejudice.” See Strickler
v. Greene, 527 U.S. 263, 289 (1999) (describing
“prejudice” showing as a “reasonable
probability” that the challenged result would have been
different but for the claimed error). The question, then, is
whether he has shown “cause” for his default.
Generally, a habeas petitioner can demonstrate
“cause” for the procedural default of a
constitutional claim when, at the time of the initial
judgment or on direct appeal, the claim was “so novel
that its legal basis is not reasonably available to
counsel.” Reed v. Ross, 468 U.S. 1, 16
(1984).[7]

In
Reed v. Ross, the Supreme Court stated that
“[b]y definition” when a decision of the Supreme
Court “explicitly overrule[s]” Supreme Court
precedent, “there will almost certainly have been no
reasonable basis upon which an attorney previously could have
urged a [] court to adopt the position that this Court has
ultimately adopted.” Id. at 17. The Supreme
Court explicitly overruled its precedent in Johnson
II, see 135 S.Ct. at 2563, and Craig's
claims are based on that decision. Therefore, it would seem
apparent that there is cause for Craig's default. Indeed,
many district courts, including this Court, have refused to
declare Johnson II claims procedurally defaulted.
See Tosi v. United States, No. 2:12-cr-100-GZS, 2016
WL 5107078, at *2 n.7 (D. Me. Sept. 20, 2016), appeal
docketed, No. 16-2225 (1st Cir. Oct. 3, 2016); see
also, e.g., United States v. Harris,
No. 1:CR-06-0268, 2016 WL 4539183, at *4 (M.D. Pa. Aug. 31,
2016) (finding petitioner's procedural default excused
and collecting other cases finding cause to excuse procedural
default of a Johnson II claim).

The
Government points to Bousley v. United States, in
which the Supreme Court concluded that a claim based on new
Supreme Court case law did not meet the Reed
standard for unavailability because “at the time of
petitioner's plea, the Federal Reporters were replete
with cases” making the legal claim he failed to
raise.[8]523 U.S. 614, 622 (1998). The Government
contends that Craig's claims premised on the
unconstitutionality of ACCA's residual clause are not
“novel” because the Supreme Court and lower
federal courts had been struggling with the constitutionality
of the residual clause for years before the decision in
Johnson II. (Gov't Response (ECF No. 236) at 6.)
It is true that, following Bousley, courts in this
circuit have found that claims are not “novel”
when they had been raised in other proceedings and
adjudicated in other courts, or when evolving Supreme Court
case law suggested the viability of the claims. See,
e.g., Damon v. United States, 732 F.3d 1, 4-5
(1st Cir. 2013); United States v. Dean, 231
F.Supp.2d 382, 386- 87 (D. Me. 2002); see also Derman v.
United States, 298 F.3d 34, 44 n.6 (1st Cir. 2002)
(compiling cases in which courts determined in the context of
procedural default that petitioners could have foreseen the
Supreme Court's Apprendi decision); McCoy v.
United States, 266 F.3d 1245, 1258-59 (11th Cir. 2001)
(noting with approval cases suggesting that
Apprendi-based arguments on collateral review were
not novel because of the long history of
“Apprendi-like” arguments pre-dating the
Supreme Court's Apprendi decision).

The
Court concludes, however, that Bousley did not
affect the core of the Reed unavailability analysis
and that Craig has shown cause for his default because his
claims are based on a Supreme Court decision that explicitly
overruled Supreme Court precedent.[9]See Simpson v.
Matesanz, 175 F.3d 200, 212 (1st Cir. 1999) (“In
the absence of better guidance, we will assume arguendo that
the familiar Reed unavailability standard is still
good law, subject to Bousley's caveat that an
argument is not unavailable simply because it has been
rejected by a higher court in a different case.”) It is
thus unnecessary to undertake the difficult task of
determining whether Craig should have foreseen the
Johnson II decision despite the fact that the time
for a direct appeal terminated years before the major Supreme
Court decisions grappling with the constitutionality of
ACCA's residual clause. Concluding that Craig has cause
for his procedural default, the Court turns to the merits of
his claims.

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